March 2024 Decisions Roundup

In March 2024, the Information Commissioner received 2 new applications and closed 7 cases (1 withdrawal, 6 decisions). As of 31 March 2024, public authorities’ compliance was pending for 11 decisions.

Decision 09/2024, Accountant General’s Department

What was requested: records relating to sums paid by the Department on behalf of the Legal Aid Office.

In her Decision, the Information Commissioner: considered the Department’s failure to issue an internal review decision within 6-weeks of the Applicant asking for one.

What was the outcome: the Information Commissioner found that the Department did not issue an internal review decision to the Applicant within the 6-week timeline set out in the PATI Act. During the Information Commissioner’s independent review, however, the Department issued an internal review. As a result, the Information Commissioner did not require the Accountant General’s Department to take any further action in respect to the Decision. The Applicant may now decide whether they want the Information Commissioner to conduct an independent review of the internal review decision issued to them.

Decision 10/2024, Bermuda Police Service

What was requested: emails between the Commissioner of Police and the Governor of Bermuda, sent or received in October 2021.

In her Decision, the Information Commissioner: considered the BPS’s decision to deny access to the record because it contained personal information. In its original internal review decision, the BPS denied access because it reasoned that disclosure would undermine the deliberative process of the BPS, including the free and frank discussion and provision of advice as part of that process. During the Information Commissioner’s review, though, the BPS abandoned its reliance on this argument, and instead confirmed that it was only withholding personal information contained in the record.

What was the outcome: as a result, the Information Commissioner found that the BPS was correct to withhold part of the record because it contained personal information, and it was not in the public interest to disclose the personal information of individuals holding non-senior posts.

The Information Commissioner went on, however, to again confirm that for individuals holding senior public posts, it was in the public interest to disclose some of the personal information in the remainder of the record, including their names, the fact of the communications and the timing of the communications, and that such disclosure was necessary to further the public interest in transparency and accountability. The BPS was ordered to disclose the relevant redacted copy of the record to the Applicant.

Decision 11/2024, Bermuda Police Service

What was requested: records relating to the execution of a search warrant. The Applicant withdrew part of the request and the record considered in the Information Commissioner’s review was a search report containing a record of notes taken during the execution of the search warrant.

In her Decision, the Information Commissioner: considered the BPS’s decision to deny access to the records because disclosure would prejudice the effectiveness of an ongoing disciplinary investigation being conducted by the BPS and the fair trial or impartial adjudication of a matter.

What was the outcome: upon completing her review, the Information Commissioner found that the BPS had not justified its reliance on the exemptions because it had not explained how disclosure of the record could prejudice the effectiveness of the disciplinary investigation or to the pending judicial review related to the search warrant. The Information Commissioner, however, invoked the personal information exemption to withhold parts of the record containing certain personal information that was not in the public interest to disclose. The BPS was ordered to disclose the relevant redacted copy of the record to the Applicant.

Decision 12/2024, Ministry of Health Headquarters

What was requested: records on the Government’s Molecular Diagnostic Laboratory and payments made to resPartner, who provided booking solutions for COVID-19 tests and the application for travel authorizations during the pandemic.

In her Decision, the Information Commissioner: considered the fact that the Ministry did disclose certain records but withheld access to the rest because the Ministry believed that those records contained information that was exempt from disclosure under the PATI Act, specifically personal information, commercial information and information received in confidence. The Information Commissioner found that the PATI Act did not apply to a few records because they were created or obtained by the Attorney General’s Chambers while performing its functions as the Government’s legal adviser. She also upheld the Ministry Headquarters’ decision to withhold the records under various exemptions, but only in part, and required some parts of the records to be disclosed to the Applicant.

What was the outcome: there is a public interest in the public knowing which individuals were involved in the decision-making process around the Government’s contracts with resPartner. With respect to the fairness of disclosure, the senior public officers and elected politicians who were involved in the decision-making process should reasonably have expected that their names, positions and involvement in matters related to their work would be disclosed to the public.

Similarly, because resPartner entered into a contract with the Government and received money from the public purse, the individual who represented and held a senior position in the company should have known that their name and position would be disclosed to the public. Disclosure of these individuals’ names, positions and any information that shows their involvement in the work relating to contracts with resPartner in response to the COVID-19 pandemic would therefore be fair.

The public interest in accountability and transparency, however, would not be furthered by disclosure of other personal information in the records, including the contact details of these senior public officers and resPartner’s representative as well as the details of public officers who provided assistance and were not involved in the decision-making process. Disclosure of these details would not be fair, as these individuals would have had a reasonable expectation that this information would not be made public without their consent.

As at 31 March 2024, the Information Commissioner had:

Total applications: 315

Pending investigations: 39

Applications pending validation: 1

Closed reviews – decided: 199

Closed applications – resolved (settled): 36

Closed applications – invalid: 33

Closed applications – abandoned: 7

Decisions pending compliance: 11

No Information Commissioner’s Decision (or other request) was subject to judicial review as at 31 March 2024.